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Vol. 4 No. 92 – MAY 14, 1996 STATE COURT CASES ADMINISTRATIVE LAW — CONSTRUCTION — BIDS 01-2-8886 In the Matter of the Proposed Debarment of Richard A. Pulaski Constr. Co., Inc., App. Div. (4 pp.) The court affirms final decision of Director of Div. of Building and Construction to debar contractor from bidding for public work contracts for a period of six months, since contractor fraudulently altered and submitted bidder classification form. AUTOMOBILES — DRIVING WHILE INTOXICATED 05-2-8887 State v. Bennie Favors, App. Div. (3 pp.) Six-year delay in prosecution of defendant’s DWI offense, combined with the feebleness of the State’s evidence — consisting only of the police report since the arresting officer could not recall the incident — amounted to a denial of fundamental fairness requiring dismissal of the charge. AUTOMOBILES — UNSATISFIED CLAIM AND JUDGMENT FUND 05-2-8888 Carnell Bradley v. Comm’r. of Ins., et al., App. Div. (6 pp.) (1) Because it was undisputed that there was an impact between the uninsured vehicle and the parked automobile in which plaintiff was sitting, judge erred in denying her a directed verdict, and (2) judge should have granted plaintiff’s motion for a new trial because the jury was irreversibly tainted by twice being told that the Fund was a defendant. DEBTOR/CREDITOR 15-2-8889 Nat’l. Bank of Sussex Cy. v. Vernon Plaza, Inc., et al., App. Div. (8 pp.) In a complex factual case brought to recover unpaid loans due and consolidated with two foreclosure suits, motion judge should not have denied one defendant’s motion to vacate a prior order allowing plaintiff to withdraw funds held in escrow by the clerk’s office, since, inter alia, the defendant did not have notice of the motion to withdraw. DEBTOR/CREDITOR — COUNSEL FEES 15-2-8890 Teressa Vitolo v. Bob Ciasulli Toyota, et al., App. Div. (6 pp.) In suit brought by car-buyer because her trade-in amount was added to her retail installment sales agreement instead of being deducted from it, bank defendant — assignee of the retail installment sales contract — is entitled to reasonable attorney fees from the dealership pursuant to the Dealer’s Interest/Reserve and Non-Recourse Agreement, as well as the Dealer’s Assignment, and judge erred in denying bank’s application for such fees. FAMILY LAW — COLLEGE EXPENSES 20-2-8891 Sheila Farina v. Dennis Eremus, App. Div. (11 pp.) Although the judge considered most of the factors set forth in Newburgh v. Arrigo, 88 N.J. 529 (1982) in determining father’s obligation to contribute to daughters’ college expenses, she failed to consider three of them, which constitutes reversible error necessitating remand. FAMILY LAW — ESTATES 20-2-8892 Donald Kiken v. Ellen Kiken, App. Div. (13 pp.) Since the parties’ agreement, as embodied in their dual judgment of divorce, did not evince their intent to bind their respective estates with the obligation to finance their son’s college education, judge correctly denied wife’s motion to substitute the executor of her deceased husband’s estate as a party to her post-judgment application to enforce the college support provisions of the divorce judgment against the estate. INSURANCE 23-2-8893 Mary R. Barry & Inland Agency, Inc. v. Selective Ins. Group, Inc., App. Div. (9 pp.) The Chancery judge correctly held that, consistent with the plain language of N.J.S.A. 17:29C-7.1(b), an insurance company can use the 2% rule embodied in that statute to substantially reduce agency’s business with the company by declining to renew auto policies. LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-8894 Evan Maltzman v. Bd. of Review, etc., et al., App. Div. (4 pp.) Claimant who quit and did not ask to have his job back was properly held to be disqualified from unemployment benefits for leaving work voluntarily without good cause attributable to his work, despite his assertion that the voluntary nature of his “quit” was defeated by his employer’s past practice of rehiring him after he would quit “in a huff.” LANDLORD/TENANT 27-2-8895 Cali Bldg. V Associates, etc. v. Computer Associates Int’l., Inc., etc., et al., App. Div. (9 pp.) Landlord’s actions, from its course of dealing with subtenant to its silence toward primary tenant concerning its intention to continue to hold primary tenant and subtenant responsible under the lease’s holdover provision, render such provision unenforceable. LAND USE 26-2-8896 Main Line Realty, Inc. v. Planning Bd. of the Boro. Of Runnemede, App. Div. (4 pp.) The evidence was insufficient, inter alia, to prove that landowner made continued expenditures solely in reliance on the belief that a previously-granted variance would continue, despite subsequent rezoning, and the planning board’s denial of major subdivision application is affirmed. NEGLIGENCE 31-2-8897 Ida Ancelo, et al. v. Charles Ancelo, Jr., et al., App. Div. (3 pp.) Where plaintiff was aware that her daughter’s basement room, in which she fell on floor pillows, was not well lit, and that pillows were kept on the floor for her grandchildren to use for watching television, daughter had no duty to warn plaintiff and summary judgment was properly granted to daughter. PUBLIC EMPLOYEES — POLICE — ACCIDENTAL DEATH BENEFITS 33-2-8898 Estate of Anthony Terminelli v. Police & Firemen’s Retirement System, etc., App. Div. (7 pp.) Since the testimony of the deceased police chief’s doctor and other witnesses overwhelmingly establish that the traumatic pursuit and struggle with a burglary suspect was the “essential significant or substantial contributing cause” of the chief’s resultant heart disability and death, the decision of the Board of the Police and Fireman’s Retirement System denying accidental death benefits to the chief’s estate was erroneous and is reversed. [Approved for publication May 14, 1996.] REAL ESTATE — SIDEWALKS 34-2-8899 Dr. Ting-Hsin Chin, et al. v. City of Newark, App. Div. (4 pp.) Since responsibility for maintenance of repair and sidewalks rests upon landowners, not city, landowners’ suit against city for increased insurance premiums due to the condition of the sidewalk was properly dismissed, and, since there is nothing in the record that would support the contention that the city’s actions — in failing to remove a tree whose roots were interfering with the sidewalk and landowners’ sewer lines — were “palpably unreasonable,” landowners’ claim for expenses incurred in repeatedly having their sewer connection cleaned were also properly dismissed. TORTS — DEFAMATION 36-2-8900 Joseph Stenukinis, et al. v. Anthony Marcantuono, et al., App. Div. (9 pp.) Order denying police supervisor’s motion for summary judgment on police officer’s defamation claims is reversed, since the supervisor is protected by qualified immunity. WILLS, ESTATES AND TRUSTS — COUNSEL FEES 38-2-8901 In the Matter of the Estate of John K. Vastardis, deceased, App. Div. (5 pp.) Although the court sympathizes with deceased’s life partner and share’s the trial judge’s view that, as a matter of equity, the estate should pay her legal fees in suit where she sought a portion of the deceased’s intestate estate, there is no legal authority for the imposition of such fees and the award must be reversed. CRIMINAL LAW AND PROCEDURE — ALIASES — LIMITATIONS 14-3-8902 State v. Michael Rondinone, Law Div. (13 pp.) The municipal court judge correctly denied the defendant’s motion to dismiss the complaints and convictions against him as time-barred, since the original summons was deficient in that it incorrectly identified the defendant — as a result of the real defendant’s use of someone else’s license — and since the Superior Court has a duty to amend the original municipal court complaint despite the passage of 30 days beyond the date of the offense; the court may amend the complaint to include more serious offenses, since they grew directly out of the fraud committed by the real defendant on the date of the original offense. [Approved for publication May 13, 1996.] CRIMINAL LAW/PROCEDURE — DOMESTIC VIOLENCE — FORFEITURE 14-2-8903 State v. S.A., App. Div. (15 pp.) Although N.J.S.A. 2C:25-21(d)(3) provides that seized weapons must be returned if the prosecutor does not act within 45 days for forfeiture, that sentence must be read together with the part of subsection (d)(3) which clearly contemplates that no weapon is to be returned if the court finds that the owner is unfit or poses a threat, as the owner does here, to the victim of domestic violence. [Approved for publication May 14, 1996.] 14-2-8904 State v. One (1) Semi-Auto Ruger, etc., App. Div. (7 pp.) Where police officer did not respond to a complaint of domestic violence, but to a complaint of a lost weapon, and where owner of weapon was not charged with domestic violence and no complaint was signed by the victim, officer had no authority to seize the weapon — ultimately determined to have been hidden by the girlfriend based upon her fear of owner — and the forfeiture is reversed. (2) Fact that girlfriend subsequently signed a domestic violence complaint does not validate the improper seizure. FEDERAL COURT CASES CRIMINAL LAW/PROCEDURE — MEGAN’S LAW 14-8-8905 Alexander A. Artway v. The Atty. Gen’l. of the State of N.J., et al., Third Cir. (13 pp.) Although the majority of the court voted not to grant petition for rehearing of challenge to Megan’s Law, the court publishes the dissenting opinion of the denial, indicating that rehearing should have been granted due to the fact that the case involves a question of exceptional importance.

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